Tracking 101: Laws and Practices for Tracking in Business

By Ryan Skidmore

November 15, 2017

Track me if you can.

GPS tracking and tracking in general can be a murky subject. Beyond tracking employees in their personal vehicles, there are so many reasons and methods for tracking that each business must weigh in the facts of their situations to determine if they are acting ethically AND within the law. With a few guidelines, some of that ambiguity can be cleared up quickly and everyone can be on the same page.

Vehicle owner’s consent: A business must have the consent of the vehicle owner, but if the business owns the vehicle, they already have consent. No problem there! Tracking only company vehicles, not employee owned, mitigates much of the risk of future legal issues. (Greensfelder)

Consider privacy laws: Tracking employees’ movement without their knowledge or consent may violate a “reasonable expectation of privacy” no matter what device or method was used to track them. (Greensfelder) Many tracking laws deal with a physical device being placed on something moving (I.E. person or vehicle). Privacy law, in many cases, may overlap, or wholly encompass, tracking law and should also be considered with equal care.

Differ for certain regulated industries: Cab drivers in New York State are required to install tracking devices on their vehicles. (Greensfelder) Tailored laws, like the previous, may, and likely will, supersede the nebulous patch work of tracking laws locally and nationally, because of their specificity in application. Tracking laws are fairly vague thus far. Researching them will provide useful loopholes and valuable defenses should a situation degrade to a legal skirmish.

Aware: Employers are almost always in the right when the employee is at least aware if other best practices were observed. (Labor and Employment Law Counsel) Aware is a minimum effort and different from informed (formally told or announced), and consent (permission from the employee). Consent is best way to go.

On Duty: An employer is also almost always in the right when tracking only during work hours. (Labor and Employment Law Counsel) However, the practices should be demonstrable.

Tracking smart phones: To be safe, tracking should only be done on company-issue phones AND only during business hours. (Greensfelder) Also, employers should abide by strict guidelines tailored to meet only their business needs and follow best practices. The legal pitfalls of tracking on smart phones are many and substantial. (Greensfelder)

Determine business reasons for tracking: Pick them wisely, write them down, stick to them, and be able to demonstrate their legitimacy. (Labor and Employment Law Counsel) These reasons set the tone for how and what is tracked, and will become a significant element in any legal actions.

Local laws and you: Understand state and local laws on tracking. How they apply to your reasons for and methods of tracking can vary drastically from any advice out there online. (Labor and Employment Law Counsel) Small nuances in your workflow and local/state laws can have large legal ramification, ranging from total compliance to serious violations.

Legal here and not there: What is illegal, many times, is “whatever shocks the judge.” (The Atlantic) GPS tracking and general tracking is still very new and uses are extremely varied, meaning laws and precedents are still being formed. (We’ve utilized words like ambiguity and nebulous for a reason.) On top of a deep consideration of one’s own unique situation (as discussed above), consulting a lawyer experienced in the topic would be expedient.

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